Unfitness to Plead Consultation Responses - Law Commission ...

UNFITNESS TO PLEAD
Response by the Law Reform Committee of the Bar Council
and the Criminal Bar Association of England and Wales
in Article 6§3(c), emphasises the importance of the right to legal
representation.
However, “effective effective participation” in this context presupposes that the
accused has a broad understanding of the nature of the trial process and of
what is at stake for him or her, including the significance of any penalty enalty
which may be imposed imposed. . It means that he or she, if necessary with the
assistance of, for example, an interpreter, lawyer, social worker or friend,
should be able to understand the general thrust of what is said in court. court
The defendant should be able to follow what is said by the prosecution
witnesses and, if represented, to explain to his own lawyers his version of
events, point out any statements with which he disagrees and make them
aware of any facts which should be put forward in his defence (see, for
example, the above-mentioned mentioned Stanford judgment,§30).
63. We make the following points in relation to the above extract from the judgment.
First, that by a parity of reasoning and principle, much of the Court’s description
of what constitutes “effective
application. Secondly, the Court was not being over prescriptive about the level of
understanding or capacity to be expected of the defendant in question (
understanding”, “general thrust
bespoke measures to assist the defendant in question to participate effectively in
the trial. Fourthly, that
communicate are important considerations
“when the decision is taken to deal with a child, such as [SC] who risks not being
able to participate effectively it is essential that he be tried in a specialist
tribunal”, 77 We make the following points in relation to the above extract from the judgment.
First, that by a parity of reasoning and principle, much of the Court’s description
effective participation” can be said to be of general
econdly, the Court was not being over prescriptive about the level of
understanding or capacity to be expected of the defendant in question (“broad (
general thrust”, etc). Thirdly, the Court attached importance to
bespoke measures to assist the defendant in question to participate effectively in
ourthly, that a defendant’s cognitive ability and his/her ability to
communicate are important considerations. Although the Court considered that
when the decision is taken to deal with a child, such as [SC] who risks not being
able to participate effectively it is essential that he be tried in a specialist
it did not suggest that the proceedings ought not to be criminal cr
proceedings leading to verdict and, if convicted, sentence.
64. We sense that the CP was heavily influenced by the thinking of Professor R.A.
Duff in his scholarly work ‘ ‘Trials and Punishment’ (1986).
made reference to that work in this Response.
proceeds on the basis that the accused is
being responsible for his/her actions and
redeem himself” [p.266]. Professor Duff
person is accused of a crime,
say that the defendant should be a participant in his trial. He is not merely
someone about whom the court must reach a determination, but someone with
whom the court must try to engage in a communicative process of accusation,
78 We have already
made reference to that work in this Response. 79 Professor Duff’s
the accused is typically a rational moral agent capable of
being responsible for his/her actions and “one who can be brought to reform and
[p.266]. Professor Duff has argued elsewhere 80 We sense that the CP was heavily influenced by the thinking of Professor R.A.
We have already
’s analysis
capable of
reform and
that where a
is accused of a crime, “he he should be called to answer that charge. This is to
say that the defendant should be a participant in his trial. He is not merely
e about whom the court must reach a determination, but someone with
whom the court must try to engage in a communicative process of accusation,
77
Para.35 of the judgment.
78
Cambridge University Press, re-issued issued as a digitally printed version in 2009. There are many references to that
work in the CP.
79
Fitness to plead, and personal autonomy autonomy, para.27, footnote 37.
80
“Fitness Fitness to plead and fair trials: Part 1: A challenge challenge”, [1994] Crim. L.R. 419.
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